The Court's Recent, Controversial Cross-Burning Ruling, And Why It Was Correct

By ERWIN CHEMERINSKY

Thursday, Apr. 17, 2003

On April 7, in the case of Virginia v. Black, the Supreme Court held that cross-burning with intent to intimidate is not protected by the First Amendment. However, such intent cannot be inferred from the act of cross-burning itself; it must be separately proven.

The decision, though controversial, was clearly the right one. The Court's decision struck exactly the right balance in this difficult area. The First Amendment should not protect the right of people to intimidate or threaten others. But the government cannot eliminate any symbol, however offensive. Speech may be made illegal if it threatens, but not because it offends.

The Divisive Issue of "Hate Speech"

Few topics in constitutional law have generated as much scholarly debate in the last fifteen years as the extent to which the First Amendment should protect "hate speech." (Hate speech is speech that expresses animosity on the basis of race, national origin, ethnicity, religion, gender, or sexual orientation.)

Some argue that hate speech perpetuates discrimination and wounds those who long have been victims. Others argue that it is wrong for the government to deem any viewpoint, however vile, outside the bounds of the First Amendment.

In Virginia v. Black, the Supreme Court returned to the issue of hate speech in a context with tragic history: cross-burning in the south. In essence, cross-burning operates as a message of hatred towards, and an implicit threat against, African-Americans.

The Relevant Statute, and the Facts of the Two Cases

Recognizing that cross-burning very often sends a threatening message, Virginia decided to prohibit cross-burning with the intent to intimidate. Such cross-burning, the Court correctly held, is not protected by the First Amendment.

Virginia also tried to go further - and to make the intent to intimidate easy to prove. Its statute provides that "[a]ny such burning . . . shall be prima facie evidence of an intent to intimidate a person or group."

"Prima facie evidence," in this context, means evidence sufficient, by itself, to prove the intent to intimidate. Under the Virginia statute, then, once the burning itself is proven, the burden shifts to the cross-burner to show that he did not in fact have the intent to intimidate when he burned the cross.

Before the Court were two separate Virginia cases that arose under the law. In one, a cross was burned at a Ku Klux Klan rally on a farm. The farm was fairly isolated and apparently relatively few people saw the incident. In the other, individuals burned a cross in the yard of an African-American family's home.

The Court's decision allowed both prosecutions to go forward - but required specific proof of the intent to intimidate in each. Such proof will likely be easy to provide in the case of the cross-burning in the family's yard - plainly a threatening tactic, meant to be understood as such. But the requisite may be much harder to provide in the case of the Ku Klux Klan rally, since rally attendees, far from being intimidated, were probably there voluntarily to support the cross-burning.

The various opinions in Virginia v. Black are difficult to interpret and their upshot may be confusing to decipher - especially since Justice O'Connor wrote an opinion for a majority of Justices as to some issues, but only for a plurality on other issues.

Nonetheless, this much can definitively be said: A majority of the Court supported three basic conclusions.

The First Principle: Some Cross-Burning Is Free Speech

First, cross-burning is not automatically exempt from First Amendment protection.

Previously, in the case of RAV v. City of St. Paul, the Court struck had down a city ordinance that prohibited burning a cross or painting a swastika in a manner likely to anger, alarm, or cause resentment. It implicitly made clear that the government cannot outlaw such symbols of hate, however offensive they may be. Then this month, in Virginia v. Black, the Court expressly reiterated that principle.

This seems exactly right. Many symbols may be terribly disturbing. For example, burning a flag is perceived by many as deeply offensive, just as burning a cross conveys the worst of America's legacy of racism. But under the First Amendment, it is not for the government to prevent particular views from being expressed.

Under the First Amendment, people may convey even racist views, however much the expression wounds and divides. Even highly repugnant messages may be expressed so long as they do not threaten others.

Nor can the government outlaw the most powerful ways of expressing those opinions.

Indeed, governments seek to ban burning of flags or crosses precisely because these symbols are so widely understood and so effective at conveying particular messages. The Court has held in Texas v. Johnson that flag burning, on its own, cannot be prohibited. The same should be true of cross-burning on its own.

But in reality, cross-burning rarely exists on its own - it often comes with a hateful, racist threat. And that is what the Court recognized when it set forth its second principle.

The Second Principle: Cross-Burning Proven to Be Threatening Can Be Made Illegal

Second, the Court held that cross-burning with the intent to intimidate is not protected by the First Amendment. Thus, as long as the government can prove a particular act of cross-burning was intended to intimidate, or reasonably perceived as a "true threat," it may be made illegal.

This, too, seems exactly right. The Supreme Court previously had ruled that true threats are not protected under the Constitution - in cases such as Madsen v. Women's Health Center, and United States v. Watts.

These decisions supported a strong principle, and Virginia v. Black continues it: Freedom of speech does not mean anyone has the right to make others feel their safety is threatened. People have the right to express themselves, including by burning a cross, but not in a way that is intended to threaten and intimidate.

The Third Principle: Intent to Intimidate Must Be Proven, Not Inferred From the Act

Third, the Court, though, without a majority opinion, ruled that cross-burning could not be taken as "prima facie" evidence of the intent to intimidate. Instead, the government must prove more than the act of cross-burning to punish a person under the First Amendment. Through other evidence, the government must demonstrate the speaker's wrongful goals.

How might that work? In the case of the cross being burned on the African-American family's law, prosecutors might point, for example, to the fact that the cross-burners trespassed to convey an "in your face" message to the family - crossing property lines to imply that other lines, too, might be crossed.

Proof will differ in different cases - and that is as it should be. Sometimes cross-burning is free speech, however reprehensible; at other times, it is a threat to life and safety, and thus may be made illegal just like any other such threat.


Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.

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